Case 7:17-cr-00468-CS Document 25 Filed 04/05/21 Page 1 of 4
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`-----------------------------------------------------x
`UNITED STATES OF AMERICA
`
`-v.-
`
`MICHAEL AZUA,
`
`Defendant.
`-----------------------------------------------------x
`
`Seibel, J.
`
`ORDER
`
`17-CR-468 (CS)
`
`Before the Court is Defendant Michael Azua’s motion for reduction of sentence under 18
`
`U.S.C. § 3582(c)(1)(A), known as “compassionate release,” (Doc. 22), and the Government’s
`
`opposition thereto, (Doc. 24).
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`On July 28, 2020, Defendant was sentenced principally to 66 months’ imprisonment.
`
`(Doc. 20.) He is scheduled to be released – presumably to a halfway house – on April 9, 2021.
`
`Under 18 U.S.C. § 3582(c)(1)(A), I may, after considering the factors set forth in 18
`
`U.S.C. § 3553(a), reduce a sentence if extraordinary and compelling reasons justify such action
`
`and it is consistent with the relevant policy statements of the Sentencing Commission. Policy
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`Statement 1B1.13 imposes similar requirements, along with the provision that the Defendant not
`
`be a danger to the safety of any other person or the community. Application Note 1 to Policy
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`Statement 1B1.13 describes four potential extraordinary and compelling reasons: 1) the
`
`defendant has a terminal medical condition or because of serious health condition from which he
`
`is not expected to recover is substantially diminished in his ability to provide self-care; 2) the
`
`defendant is at least 65 years old, has served 75% or 10 years of his sentence, and is
`
`experiencing a serious deterioration in health because of the aging process; 3) family
`
`circumstances; and 4) an extraordinary and compelling reason other than or in combination with
`
`
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`-----------------------------------------------------x
`UNITED STATES OF AMERICA
`
`-v.-
`
`MICHAEL AZUA,
`
`Defendant.
`-----------------------------------------------------x
`
`Seibel, J.
`
`ORDER
`
`17-CR-468 (CS)
`
`Before the Court is Defendant Michael Azua’s motion for reduction of sentence under 18
`
`U.S.C. § 3582(c)(1)(A), known as “compassionate release,” (Doc. 22), and the Government’s
`
`opposition thereto, (Doc. 24).
`
`On July 28, 2020, Defendant was sentenced principally to 66 months’ imprisonment.
`
`(Doc. 20.) He is scheduled to be released – presumably to a halfway house – on April 9, 2021.
`
`Under 18 U.S.C. § 3582(c)(1)(A), I may, after considering the factors set forth in 18
`
`U.S.C. § 3553(a), reduce a sentence if extraordinary and compelling reasons justify such action
`
`and it is consistent with the relevant policy statements of the Sentencing Commission. Policy
`
`Statement 1B1.13 imposes similar requirements, along with the provision that the Defendant not
`
`be a danger to the safety of any other person or the community. Application Note 1 to Policy
`
`Statement 1B1.13 describes four potential extraordinary and compelling reasons: 1) the
`
`defendant has a terminal medical condition or because of serious health condition from which he
`
`is not expected to recover is substantially diminished in his ability to provide self-care; 2) the
`
`defendant is at least 65 years old, has served 75% or 10 years of his sentence, and is
`
`experiencing a serious deterioration in health because of the aging process; 3) family
`
`circumstances; and 4) an extraordinary and compelling reason other than or in combination with
`
`
`
`Case 7:17-cr-00468-CS Document 25 Filed 04/05/21 Page 2 of 4
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`one of the above. But “[n]either Application Note 1(D), nor anything else in the now-outdated
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`version of Guideline § 1B1.13, limits the district court’s discretion.” United States v. Brooker,
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`976 F.3d 228, 237 (2d Cir. 2020).1 “The defendant has the burden to show he is entitled to a
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`sentence reduction” under Section 3582(c)(1)(A). United States v. Ebbers, 432 F. Supp. 3d 421,
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`426 (S.D.N.Y. 2020).
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`A sentence reduction may be considered only if Defendant has exhausted his
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`administrative remedies, meaning he must have applied to the Warden of his facility and waited
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`at least thirty days for a response. See 18 U.S.C. § 3582(c)(1)(A). Apparently Defendant has
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`sought only release to home confinement under 18 U.S.C. § 3624, a remedy only the Bureau of
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`Prisons (“BOP”), not the Court, can provide. See United States v. Kerrigan, No. 16-CR-576,
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`2021 WL 793880, at *1 n.1 (S.D.N.Y. Mar. 2, 2021). But the Government has waived
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`exhaustion, (Doc. 24 at 3), so I continue to the merits.
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`Defendant argues that the dangers presented by the coronavirus pandemic in prison,2
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`combined with his medical conditions – specifically, asthma and early arthritis – amount to an
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`extraordinary and compelling reason. Arthritis does not appear on the list of conditions that the
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`Centers for Disease Control (“CDC”) has identified as causing increased risk for severe disease
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`if one contracts COVID-19, and asthma is a risk factor only if it is moderate to severe.
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`Defendant’s Pre-Sentence Report, (Doc. 21 ¶ 158), and BOP medical records3 confirm that his
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`1The Government needs to update its boilerplate in light of Brooker.
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`2I assume that the halfway house to which Defendant is soon headed will be less than
`ideal in terms of social distancing and mask-wearing, even if better than prison.
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`3The Government shall supply hard copies of the medical records to chambers for filing
`under seal.
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`2
`
`
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`Case 7:17-cr-00468-CS Document 25 Filed 04/05/21 Page 3 of 4
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`asthma is mild and well controlled. Further, Defendant is fortunate to be incarcerated at a
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`facility that does not presently have a substantial COVID-19 outbreak. According to BOP, there
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`are no positive inmates at FCI Gilmer.
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`Moreover, Defendant refused the COVID-19 vaccine on March 2, 2021 (before his
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`motion was filed).4 “In declining vaccination . . . [Defendant] declined the opportunity to reduce
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`his risk exposure to COVID-19 dramatically; he cannot reasonably expect that prolonging his
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`risk by declining vaccination will be rewarded with a sentence reduction.” United States v.
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`Lohmeier, No. 12-CR- 1005, 2021 WL 365773, at *2 (N.D. Ill. Feb. 3, 2021) (collecting cases
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`for proposition that circumstances are not extraordinary and compelling where defendant refused
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`vaccination); see United States v. Mascuzzio, No. 16-CR-576, 2021 WL 794504, at *3 (S.D.N.Y.
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`Mar. 2, 2021) (Court hard-pressed to find extraordinary and compelling reasons based on health
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`in light of inmate’s “voluntary refusal of an approved vaccine that is highly effective at
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`preventing COVID-19 and may also help keep him from getting seriously ill even if he did get
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`COVID-19”) (internal quotation marks and alterations omitted); United States v. Gonzalez
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`Zambrano, No. 18-CR-2002, 2021 WL 248592, at *5 (N.D. Iowa Jan. 25, 2021) (“Although
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`[Defendant] requests that the Court take immediate action to reduce her sentence and release her
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`due to the threat of COVID-19, she herself was not willing to inoculate herself against that same
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`disease. Although defendant has a right to refuse medical treatment, the Court finds that it
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`would be inappropriate to reward her refusal to protect herself by granting her release. It would
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`be paradoxical to endorse a system whereby a defendant could manufacture extraordinary and
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`compelling circumstances for compassionate release by unreasonably refusing the health care
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`4I assume Defendant’s counsel was unaware of Defendant’s refusal of the vaccine.
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`3
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`
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`Case 7:17-cr-00468-CS Document 25 Filed 04/05/21 Page 4 of 4
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`afforded to them.”).
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`Accordingly, I do not believe extraordinary and compelling circumstances exist.5 I
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`therefore do not reach the § 3553(a) factors.
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`For the reasons stated above, the motion is denied. The Clerk of Court is respectfully
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`directed to terminate Doc. 22.
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`Dated: April 5, 2021
`White Plains, New York
`
`____________________________
`CATHY SEIBEL, U.S.D.J.
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`5Defendant emphasizes that he presents no risk to the community and has family support.
`Assuming that to be so, these factors do not amount to extraordinary and compelling
`circumstances. Refraining from criminal conduct upon release is expected. Well meaning
`family members are also not uncommon, but by definition their support did not prove effective
`in keeping Defendant on the straight and narrow in the past. While I hope Defendant adheres to
`his plan to be law-abiding upon release, for his sake and the community’s, good behavior and
`good intentions do not rise to the level of extraordinary and compelling circumstances. Indeed,
`“[r]ehabilitation of the defendant alone shall not be considered an extraordinary and compelling
`reason” under § 2582(c)(1)(A). 28 U.S.C. § 994(t).
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`4
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`
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